The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In American Legion, Justice Gorsuch wrote a concurring opinion, joined by Justice Thomas. Gorsuch challenged the entire basis of Article III standing for Establishment Clause cases. In Gorsuch's view, merely taking "offense" at some public display of religion was insufficient to establish an Article III injury. (I too have long questioned standing in cases like Van Orden v. Perry.) Gorsuch wrote:
In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an "offended viewer" may "avert his eyes," Erznoznik v. Jacksonville (1975), or pursue a political solution. Today's decision represents a welcome step toward restoring this Court's recognition of these truths, and I respectfully concur in the judgment.
If this passage is correct, then why would someone suffering "offense" from a public display have a constitutional injury? Van Orden could have just have averted his eyes at the Ten Commandments display. (And don't get me started on Flast v. Cohen.)
At the time, Gorsuch's opinion garnered only two votes. Now, a majority of the Court implicitly endorsed Gorsuch's reasoning. Kennedy v. Bremerton includes this passage:
Naturally, Mr. Kennedy's proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is "part of learning how to live in a pluralistic society," a trait of character essential to "a tolerant citizenry." Lee. This Court has long recognized as well that "secondary school students are mature enough … to understand that a school does not endorse," let alone coerce them to participate in, "speech that it merely permits on a nondiscriminatory basis." Mergens. Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But "[o]ffense … does not equate to coercion." Town of Greece.
If offense is not sufficient to trigger coercion, then what is the basis for an Article III injury? Moreover, the Court has sent a clear message: unless there is direct coercion, get over prayer in public. The government's attempt to avoid a person from feeling "offense" is not sufficient to violate the coach's Free Exercise and Free Speech rights.
Justice Sotomayor's dissent contends that Gorsuch read Lee v. Weisman out of context:
Today's Court quotes the Lee Court's remark that enduring others' speech is "part of learning how to live in a pluralistic society.'" The Lee Court, however, expressly concluded, in the very same paragraph, that "[t]his argument cannot prevail" in the school-prayer context because the notion that being subject to a "brief " prayer in school is acceptable "overlooks a fundamental dynamic of the Constitution": its "specific prohibition on … state intervention in religious affairs." [FN7]
FN7: The Court further claims that Lee is distinguishable because it involved prayer at an event in which the school had 'in every practical sense compelled attendance and participation in [a] religious exercise." The Court in Lee, however, recognized expressly that attendance at the graduation ceremony was not mandatory and that students who attended only had to remain silent during and after the prayers.
And Sotomayor challenges the majority's claim that "direct coercion" is needed under the Court's precedents:
The Court claims that the District "never raised coercion concerns" simply because the District conceded that there was "'no evidence that students [were] directly coerced to pray with Kennedy.'" The Court's suggestion that coercion must be "direc[t]" to be cognizable under the Establishment Clause is contrary to long-established precedent. The Court repeatedly has recognized that indirect coercion may raise serious establishment concerns, and that "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." Lee. Tellingly, none of this Court's major cases involving school prayer concerned school practices that required students to do any more than listen silently to prayers, and some did not even formally require students to listen, instead providing that attendance was not mandatory. Nevertheless, the Court concluded that the practices were coercive as a constitutional matter.
Once again in Red Flag June, the Court has shifted doctrine. Lemon is gone. Plus cases involving coercion like Lee and Santa Fe have also been abrogated. The amount of doctrinal shifts this Term will take some time to digest.